Earlier this month, Representative Mike Pompeo, along with 4 co-sponsors, introduced the Safe and Accurate Food Labeling Act (H.R. 4432). This bill sets forth three main objectives: it establishes a process for evaluating the safety of foods consisting of or containing bioengineered organisms (defined as a plant or a seed, fruit, or any part of a plant containing genetic material that has been modified through in vitro recombinant DNA techniques), it sets national labeling standards regarding the presence or absence of bioengineered organisms, and it requires the Department of Agriculture to define the term “natural” as it is used in food labeling. If passed, this legislation would have a significant national impact due to its preemptive effect on state labeling laws.
The proposed legislation addresses concerns regarding the safety of bioengineered organisms, or “GMOs,” by creating a mandatory premarket notification and review process. As drafted, this process obligates the developer of a GMO to submit to the Department of Agriculture (“USDA”) a notification that a GMO is being proposed for food use. The notification must contain the basis for the developer’s determination that the bioengineered food is as safe as the non-bioengineered equivalent and disclose whether any other federal agency has conducted or is conducting any review of the bioengineered organism. The USDA will review and evaluate the application, and within a designated time period inform the applicant whether the agency agrees with the determination, objects to the determination, or concludes that the information supplied to the agency is not sufficient to support the determination.
The proposed legislation also defines mandatory and voluntary labeling requirements. The mandatory labeling requirements are consistent with the intent of the Food, Drug and Cosmetic Act because food containing GMOs would be required to bear a label where it is materially different from its conventional counterpart. A material difference includes different nutritional properties, characteristics, or the presence of allergens that consumers would not expect to be present based on the food’s name. The use of bioengineering on its own would not constitute a material difference. If a food producer wants to voluntarily represent that its products do not contain GMOs, it may do so only if the food bearing the claim is comprised of ingredients subject to strict supply-chain process controls requiring the use of conventional seeds and the separation of crops during growth, harvest, storage, and transportation.
The final provision of the proposed legislation addresses the use of the term “natural” in food labels by directing the Secretary of Agriculture to promulgate regulations defining when the term may be used. Prior to such regulations, the legislation would allow the use of the term “natural” on food packaging so long as its use is consistent with the Secretary’s existing policy.
The impact of this bill, if passed, would be significant because it contains express language preempting state laws. Though no state currently mandates GMO labeling, numerous states are currently considering GMO labeling laws and some states have already passed GMO labeling legislation that could shortly take effect. These laws generally mandate disclosure of the use of GMOs irrespective of differences from conventional food. Once operative, these laws would create a complex patchwork of varying labeling requirements—a nightmare for food manufacturers and retailers. The Safe and Accurate Food Labeling Act would resolve this issue by creating a single labeling standard. The bill still has a long way to go given that there is currently no companion bill in the Senate and there is a competing proposal in Congress introduced by Senator Boxer and Representative DeFazio.